(via Michael Geist) The architect of the DMCA Bruce Lehman admits "our attempts at copyright control have not been successful." He also "he lays much of the blame at the feet of the recording industry for their failure to adapt to the online marketplace in the mid-1990s." You give the big guys more monopoly power and they innovate less. Who'd have thunk it?

AP Reporting -

Activist groups sued the parent company of Comedy Central on Thursday, claiming the cable network improperly asked the video-sharing site YouTube to remove a parody of the network's "The Colbert Report."

Although the video in question contained clips taken from the television show, MoveOn.org Civic Action and Brave New Films LLC argued that their use was protected under "fair use" provisions of copyright law.

They said Viacom Inc. should have known the use was legal and thus its complaint to YouTube to have the video blocked amounted to a "misrepresentation" that is subject to damages under the 1998 Digital Millennium Copyright Act.

The challenge, filed in U.S. District Court in San Francisco, came about a week after Viacom filed its own, $1 billion lawsuit against YouTube, claiming that the wildly popular Web site is rife with copyrighted video from Viacom shows, including "The Colbert Report."

Neither YouTube nor its parent, Google Inc., was named in the latest lawsuit, filed on the plaintiffs' behalf by the Electronic Frontier Foundation and Stanford Law School's Center for Internet and Society.

Viacom spokesman Jeremy Zweig had no immediate comment.

Under the DMCA, YouTube and other service providers are generally immune from copyright lawsuits as long as they promptly respond to copyright complaints, known as takedown notices. According to the lawsuit, a takedown notice was sent to YouTube last week, and the video was blocked almost immediately.

Service providers are not required to investigate claims under the DMCA and in fact could lose their immunity if they take too long to respond. The law does give users the right to sue the issuer of the takedown request when it contains misrepresentations that an item is infringing. Such lawsuits are rare, though.

"People just shoot off a takedown notice without really giving a second thought to the material being taken down and whether it's really proper to be taken down," said Corynne McSherry, a staff attorney with the EFF. "A lot of people cave in because they don't realize they can push back or they can't afford to push back."

The lawsuit seeks unspecified legal costs and damages on grounds the plaintiffs' free-speech rights were harmed.

"With this lawsuit, we are making clear that corporations like Viacom must not be allowed to muzzle independent video creators and censor their free speech," said Eli Pariser, MoveOn's executive director.

The parody "Stop the Falsiness," a play on host Stephen Colbert's use of the term "truthiness," was jointly produced by MoveOn and Brave New Films, an activist production company that has made documentaries on the Iraq war, Wal-Mart and the Fox News Channel.

I'm often on opposite ends of political matters with MoveOn.org, but kudos to them for this move. It is about time that Viacom was called on the carpet for its Copyfraud. Additional kudos to the EFF which often does great work.

[EFF's legal documents and press release about the case here.]

More general information about Copyfraud can be found here.]

One question though: Colbert is a "parody" show. If you make a parody of a parody, does it then become a "satire"?

Lawrence Lessig writes that the Viacom-YouTube suit is the result of judicial interference in a matter of law that Congress had already decided link here. It injected the courts into what everyone thought was settled law the safe-harbor provision of the DMCA through the use of take-down requests when it entered the Grokster case twenty months ago. That decision expanded liability under the Copyright Act to cover wrongfully providing technology that induces copyright infringement. The similarity of the Viacom-YouTube case seems pretty clear. Lessig expects the case to be long and expensive for the public. The alternative is a move by the Congress to reassert its authority over copyright as laid out in the Constitution.

Via Gerry Everding a a wonderful post by Larry Downes. The short version: the dissonance between law and practice is too large - it is the law that will change.